EXHIBIT 10.6
AMENDMENT AGREEMENT NO. 1
TO CREDIT AGREEMENT
THIS AMENDMENT AGREEMENT NO. 1 TO CREDIT AGREEMENT (this "Amendment
Agreement") is made and entered into as of this 22nd day of June, 2001, by and
among SPHERION CORPORATION, a Delaware corporation ("Spherion"), the BORROWING
SUBSIDIARIES parties hereto (herein Spherion and each Borrowing Subsidiary are
individually referred to as a "Company" and collectively, the "Companies"), the
several financial institutions party hereto and BANK OF AMERICA, N.A., a
national banking association (the "Agent"), all parties to the Credit Agreement
described below.
W I T N E S S E T H:
WHEREAS, the Companies, the financial institutions party thereto
(collectively, the "Banks", individually, a "Bank") and the Agent have entered
into a Second Amended and Restated Credit Agreement dated April 2, 2001 (the
"Credit Agreement") pursuant to which the Banks have agreed to make available to
the Borrowers revolving credit facilities of up to $400,000,000; and
WHEREAS, as a condition to the making of loans the Lender has required
that certain Subsidiaries of Spherion execute a Guaranty Agreement whereby each
of them guarantees payment of the Obligations arising under the Credit
Agreement; and
WHEREAS, the Companies have requested that the Agent and the Banks,
subject to the terms and conditions of this Amendment, amend the Credit
Agreement as provided herein;
NOW, THEREFORE, in consideration of the mutual covenants, promises and
conditions herein set forth, it is hereby agreed as follows:
1. DEFINITIONS. The term "Credit Agreement" as used herein and in the
Loan Documents shall mean the Credit Agreement as heretofore and hereby amended
and as from time to time further amended or modified. Unless the context
otherwise requires, all capitalized terms used herein without definition shall
have the respective meanings provided therefor in the Credit Agreement.
2. AMENDMENTS. The Credit Agreement is hereby amended, effective as of
the date hereof, as follows:
(a) SECTION 1.2 is hereby amended by adding thereto the
following two new defined terms in the appropriate alphabetical order:
"Consolidated Total Senior Leverage Ratio" means,
with respect to Spherion and its Subsidiaries, on a
consolidated basis, for any consecutive four
quarter period (subject to adjustment as contemplated in
SECTION 8.3(iv)), the ratio of (x) Total Senior Indebtedness
as at the end of such period to (y) Consolidated EBITDA for
such period.
"Total Senior Indebtedness" means, at any time
(subject to adjustment as contemplated by SECTION 8.3(iv)),
all Indebtedness of Spherion and its Subsidiaries, MINUS
Subordinated Indebtedness, on a consolidated basis at such
time."
(b) The definition of "Consolidated Total Leverage Ratio" in
SECTION 1.2 is hereby amended in its entirety so that as amended it
shall read as follows:
"Consolidated Total Leverage Ratio" means, with
respect to Spherion and its Subsidiaries, on a consolidated
basis, for any consecutive four quarter period (subject to
adjustment as contemplated by SECTION 8.3(iv)), the ratio of
(x) Total Indebtedness MINUS the sum of all cash and the fair
market value of all Cash Equivalent Investments of Spherion
and its Subsidiaries in excess of the sum of $30,000,000 and,
until paid, the $122,000,000 of estimated taxes payable as a
result of the sale of Xxxxxxx Page, all as at the end of such
period to (y) Consolidated EBITDA for such period."
(c) The last sentence of SECTION 2.15(c) is hereby amended in
its entirety so that as amended it shall read as follows:
"The Applicable Margin shall not be less than .675%
and .750% for Revolving Loans and 364 Day Loans, respectively,
and the Applicable Fee Percentage shall not be less than .325%
and .250% for Revolving Commitments and 364 Day Commitments,
respectively, until the Business Day next following the date
of receipt by the Agent of the Compliance Certificate and
related financial statements of Spherion and its Subsidiaries
for the fiscal year ending December 28, 2001."
(d) SECTION 8.3(iv) is hereby amended in its entirety so that
as amended it shall read as follows:
"(iv) In determining Consolidated EBITDA,
Consolidated Interest Expense, Consolidated Net Income,
Consolidated Net Worth, Total Indebtedness, the Consolidated
Interest Coverage Ratio, the Consolidated Total Leverage
Ratio, the Consolidated Total Senior Leverage Ratio and Total
Senior Indebtedness, all results of operations of Xxxxxxx Page
and its Subsidiaries and all Indebtedness attributed thereto
(including, without limitation, all Indebtedness discharged
with the proceeds of the Xxxxxxx Page IPO) shall be excluded."
(e) SECTION 8.3 is hereby amended by adding a new clause (v)
thereto reading as follows:
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"(v) The Consolidated Total Senior Leverage Ratio as
at the end of any fiscal quarter ending after the Effective
Date for the four fiscal quarters then ending to exceed 2.50
to 1.00."
(f) SECTION 8.5(c) is hereby amended in its entirety so that
as amended it shall read as follows:
"(c) Spherion may purchase or redeem or make open
market purchases of any class of capital stock in any fiscal
year at an aggregate cost not to exceed (i) 7.5% of
Consolidated Net Worth during its fiscal year 2001 and (ii) 5%
of Consolidated Net Worth as at the end of any fiscal year
thereafter; and"
3. GUARANTORS. Each of the Guarantors has joined in the execution of
this Amendment Agreement for the purpose of consenting to the amendments
contained herein and reaffirming its guaranty of the Obligations.
4. COMPANIES' REPRESENTATIONS AND WARRANTIES. Each Company hereby
represents, warrants and certifies that:
(a) The representations and warranties made by it in ARTICLE
VI of the Credit Agreement are true on and as of the date hereof before
and after giving effect to this Amendment Agreement except that (i) the
financial statements referred to in SECTION 6.10(a) shall be those most
recently furnished to each Bank pursuant to SECTION 7.1(a) AND (b) of
the Credit Agreement;
(b) The Companies have the power and authority to execute and
perform this Amendment Agreement and have taken all action required for
the lawful execution, delivery and performance thereof.
(c) There has been no material adverse change in the
condition, financial or otherwise, of the Companies and their
Subsidiaries since the date of the most recent financial reports of the
Companies received by the Banks under SECTION 7.1 of the Credit
Agreement, other than changes in the ordinary course of business, none
of which has been a material adverse change;
(d) The business and properties of the Companies and their
Subsidiaries are not, and since the date of the most recent financial
report of the Companies and their Subsidiaries received by the Lender
under SECTION 7.1 of the Credit Agreement have not been, adversely
affected in any substantial way as the result of any fire, explosion,
earthquake, accident, strike, lockout, combination of workers, flood,
embargo, riot, activities of armed forces, war or acts of God or the
public enemy, or cancellation or loss of any major contracts; and
(e) No event has occurred and no condition exists which, upon
the consummation of the transaction contemplated hereby, constitutes a
Default or an Event
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of Default on the part of the Companies under the Credit Agreement
either immediately or with the lapse of time or the giving of notice,
or both.
5. CONDITIONS TO EFFECTIVENESS. This Amendment Agreement shall become
effective upon receipt by the Agent of the following:
(a) nineteen (19) counterparts of this Amendment Agreement
executed by the Companies, Guarantors, Agent and Required Banks;
(b) copies of resolutions of the Boards of Directors of the
Companies and each of the Guarantors authorizing the transaction
contemplated by this Amendment Agreement certified by the Secretary or
Assistant Secretary of each of the Companies and each of the
Guarantors;
(c) payment to each Bank executing this Amendment Agreement of
an amendment fee equal to 10 basis points times such Bank's Commitment;
and
(d) such other instruments and documents as the Lender may
reasonably request.
6. ENTIRE AGREEMENT. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. None of the terms or conditions of this
Amendment Agreement may be changed, modified, waived or canceled orally or
otherwise, except as provided in the Credit Agreement.
7. FULL FORCE AND EFFECT OF AGREEMENT. Except as hereby specifically
amended, modified or supplemented, the Credit Agreement and all of the other
Loan Documents are hereby confirmed and ratified in all respects and shall
remain in full force and effect according to their respective terms.
8. COUNTERPARTS. This Amendment Agreement may be executed in any number
of counterparts and all the counterparts taken together shall be deemed to
constitute one and the same instrument.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
COMPANIES:
SPHERION CORPORATION
WITNESS:
/s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxx X. Xxxxxx
---------------------------- -----------------------------
Name: Xxx X. Xxxxxx
/s/ Xxxxxxxx X. Xxxxxxxx Title: Executive Vice President & CFO
----------------------------
SPHERION WORLDWIDE HOLDING BV
(F/K/A INTERIM SERVICES WORLDWIDE HOLDING BV)
BY: SPHERION (EUROPE) INC., DIRECTOR
WITNESS:
/s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxx X. Xxxxxx
---------------------------- -----------------------------
Name: Xxx X. Xxxxxx
/s/ Xxxxxxxx X. Xxxxxxxx Title: Executive Vice President & CFO
----------------------------
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BANK OF AMERICA, N.A., AS AGENT
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
BANK OF AMERICA, N.A., AS A BANK
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
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ABN AMRO BANK N.V.
By: /s/ X.X. Xxxxxxx
-------------------------------------
Name: X.X. Xxxxxxx
-------------------------------------
Title: Senior Vice President
-------------------------------------
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------------
Title: Group Vice President
-------------------------------------
Lending Office:
000 X. XxXxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Credit Administration
Wire Transfer Instructions:
ABN AMRO Bank N.V.
New York, New York
ABA #0000000000
F/O ABN AMRO Bank N.V.
Chicago Branch CPU
Account #650-001-1789-41
Reference: CPU (#00408972)
Spherion Corporation
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THE CHASE MANHATTAN BANK
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
-------------------------------------
Title: Vice President
-------------------------------------
Lending Office:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Wire Transfer Instructions:
The Chase Manhattan Bank
New York, New York
ABA #000000000
Commercial Loans #9420
Reference: Spherion Corporation
Attention: __________________
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CITIBANK, N.A.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
-------------------------------------
Title: Vice President
-------------------------------------
Lending Office:
000 Xxxx Xxxxxx, 00xx Xxxxx, Xxxx 00
Xxx Xxxx, Xxx Xxxx 00000
Wire Transfer Instructions:
Citibank, N.A.
New York, New York
ABA #000000000
Account #00000000
Atlanta Receipts
Reference: Spherion Corporation
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FIRST UNION NATIONAL BANK
By: /s/ Xxxxxxxx X.X. Xxxx
-------------------------------------
Name: Xxxxxxxx X.X. Xxxx
-------------------------------------
Title: AVP
-------------------------------------
Lending Office:
000 Xxxxx Xxxxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Wire Transfer Instructions:
First Union National Bank
Miami, Florida
ABA #000000000
Account #GL 0000000000
Account Name: Commercial Loan Services
Attention: Xxxxx Xxxxx
Reference: Spherion Corporation
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FLEET NATIONAL BANK
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxx
-------------------------------------
Title: Senior Vice President
-------------------------------------
Lending Office:
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Mail Stop: MA DE 1000 7F
Xxxxxx, Xxxxxxxxxxxxx 00000
Wire Transfer Instructions:
Fleet National Bank
Boston, Massachusetts
ABA # 000-000-000
Account # 151035166156
Attention: Commercial Loan Services/C&I
Reference: Spherion Corporation
11
SUNTRUST BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------------
Title: Director
-------------------------------------
Lending Office:
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx, XX 0000
Xxxxxxx, Xxxxxxx 00000
Wire Transfer Instructions:
SunTrust Bank, N.A.
ABA #000-000-000
Account #9088000112/Wire Clearing
Attention: Xxx Xxxxxxx
Reference: Spherion Corporation
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WACHOVIA BANK, N.A.
By: /s/ XXXXX X. XXXX
-------------------------------------
Name: XXXXX X. XXXX
-------------------------------------
Title: VICE PRESIDENT
-------------------------------------
Lending Office:
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Wire Transfer Instructions:
Wachovia Bank, N.A.
Atlanta, Georgia
ABA #000000000
Account #00-000 000
Attention: Xxxxxxxx Xxxxxx
Reference: Spherion Corporation
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ING BANK N.V.
By: /s/ X. Xxxxxxx
-------------------------------------
Name: X. Xxxxxxx
-------------------------------------
Title: Sr. Relationship Manager
-------------------------------------
By: /s/ M. Balmessen
-------------------------------------
Name: M. Balmessen
-------------------------------------
Title: Sr. Relationship Manager
-------------------------------------
Lending Office:
X.X. Xxx 0000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Wire Transfer Instructions:
Northern Trust Int. Banking Corp.
Account #100628-20230, SWIFT
CNORUS 33
In Favor of: ING Utrecht
For Further Credit to: Account #00.00.00.000
(ING)
Reference: Spherion Corporation
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THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
-------------------------------------
Title: Senior Vice President and Manager
-------------------------------------
Lending Office:
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Wire Transfer Instructions:
The Industrial Bank of Japan, Limited
New York Branch
New York, New York
ABA #000000000
For further credit to: IBJ Atlanta Agency
Account #2601-21014
Reference: Spherion Corporation
00
XXX XXXX XX XXX XXXX
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
-------------------------------------
Title: Vice President
-------------------------------------
Lending Office:
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Wire Transfer Instructions:
The Bank of New York
New York, New York
ABA #000000000
Commercial Loan Servicing Department
Reference: Spherion Corporation
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COMERICA BANK
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxx
-------------------------------------
Title: AVP
-------------------------------------
Lending Office:
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
XX 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Wire Transfer Instructions:
Comerica Bank
ABA #000000000
Account Name: Commercial Loan Servicing
Account #00-00000-00000
Reference: Spherion Corporation
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CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------------------
Title: Managing Director
-------------------------------------
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------------
Title: Assistant Vice President
-------------------------------------
Lending Office:
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Wire Transfer Instructions:
The Bank of New York
New York, New York
ABA # 000000000
Name of Account: CSFB NY Trade Services
Account #000-0000-000
Reference: Spherion Corporation
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HSBC BANK USA
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
-------------------------------------
Title: Vice President
-------------------------------------
Lending Office:
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Wire Transfer Instructions:
HSBC Bank USA
ABA #000-000-000
Account #000-000-000
Attention: Asset Syndications
Reference: Spherion Corporation
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KBC BANK N.V.
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxx
-------------------------------------
Title: First Vice President
-------------------------------------
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
-------------------------------------
Title: Assistant Vice President
-------------------------------------
Lending Office:
New York Branch
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Wire Transfer Instructions:
KBC Bank N.V.
ABA #000-000-000
Reference: Spherion Corporation
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THE NORTHERN TRUST COMPANY
By: /s/ Xxxxx XxXxxxx
-------------------------------------
Name: Xxxxx XxXxxxx
-------------------------------------
Title: Second Vice President
-------------------------------------
Lending Office:
00 X. XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Wire Transfer Instructions:
The Northern Trust Company
ABA #000000000
Commercial Loan Account #5186401000
Credit to: Commercial Loan Dept.
Reference: Spherion Corporation
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GUARANTORS:
ATRIUM (U.S.-B) INC.
ATRIUM (U.S.-B) LLC
SPHERION ACQUISITION CORPORATION
(F/K/A INTERIM ACQUISITION CORPORATION)
SPHERION ASSESSMENT INC.
(F/K/A INTERIM ASSESSMENT SERVICES, INC.)
SPHERION FINANCIAL CORPORATION
(F/K/A INTERIM FINANCIAL CORPORATION)
SPHERION REAL ESTATE SOLUTIONS INC.
(F/K/A INTERIM REAL ESTATE SOLUTIONS INC.)
ATRIUM (NL-A) INC.
XXXXXXX CORPORATION
(F/K/A INTERIM MERGER CORPORATION)
SPHERION U.S. INC.
(F/K/A INTERIM U.S. INC.)
RICH FIELD AGENCY, INC.
SARATOGA INSTITUTE, INC.
SPHERION (EUROPE) INC.
(F/K/A INTERIM SERVICES (EUROPE) INC.)
ANATEC ASSET MANAGEMENT COMPANY
ATR ASSET MANAGEMENT COMPANY
COMTEX ASSET MANAGEMENT COMPANY
COMTEX INFORMATION SYSTEMS, INC.
NC HOLDING CORPORATION
NORCROSS TELESERVICES INC.
XXXXXXX ASSET MANAGEMENT COMPANY
ACCOUNTING RESOURCES OF MASSACHUSETTS, INC.
XXXXXXX RESOURCES CORPORATION
XXXXXXX LICENSING COMPANY
XXXXXXX INTERNATIONAL LTD.
XXXXXXX TEMPORARY SERVICES, INC.
XXXXXXX ACQUISITION CORP.
SPHERION PACIFIC ENTERPRISES LLC
SPHERION ATLANTIC ENTERPRISES LLC
SPHERION PACIFIC OPERATIONS LLC
SPHERION HOLDINGS LLC
SPHERION ATLANTIC OPERATIONS LLC
By: /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President (Risk Management)
of each of the foregoing Guarantors
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